Kern v Qantas Airways Limited - [2015] NSWSC 1565

Supreme Court

New South Wales

Case Name:	Kern v Qantas Airways Limited
Medium Neutral Citation:	[2015] NSWSC 1565
Hearing Date(s):	08 October 2015
Date of Orders:	27 October 2015
Decision Date:	27 October 2015
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	The Court orders that: (1) The amended statement of claim filed 1 July 2015 is dismissed. (2) The proceedings are dismissed. (3) The plaintiff is to pay the defendants’ costs of the proceedings, including the costs of Airbus Group Australia Pacific Limited and the costs of the notices of motion filed on 30 July 2015 and 25 September 2015 on an ordinary basis as agreed or assessed.
Catchwords:	CIVIL PROCEDURE – application for summary dismissal – whether claim statute barred pursuant to s 9B of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and Article 35 of the Montreal Convention 1999 – wrong defendant named – whether pleadings disclose a reasonable cause of action, are embarrassing or are an abuse of process
Legislation Cited:	Civil Aviation (Carriers’ Liability Act) 1959 (Cth) Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth) Federal Court Act 1976 (Cth) Guadalajara Convention 1961 Hague Protocol 1955 Montreal Convention 1999 Montreal Protocol No. 4 1975 Transport Safety Investigation Act 2003 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Warsaw Convention 1929
Cases Cited:	Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251 Clarke v New South Wales [2015] NSWSC 1054 Grein v Imperial Airways Ltd [1937] 1 KB 50; [1936] 2 All ER 1258 O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189 Qantas Ltd v Povey [2003] VSCA 227; (2003) 11 VR 642 Sidhu & Abnett (known as Sykes) v British Airways plc [1997] AC 430; [1997] 1 All ER 193 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Stott v Thomas Cook Tour Operators Ltd [2014] AC 1347; [2014] 2 All ER 409 United Airlines Inc v Sercel Australia Pty Ltd (2012) 260 FLR 37; [2012] NSWCA 24
Category:	Procedural and other rulings
Parties:	Seymour P Kern (Plaintiff) Qantas Airways Limited (First Defendant) Airbus Australia (Second Defendant) Rolls Royce Plc (Third Defendant)
Representation:	Counsel: N Chen (First and Third Defendants) J Potts (Second Defendant) Solicitors: S Kern (Plaintiff in person) Holman Fenwick Willan (First and Third Defendants) Clayton Utz (Second Defendant)
File Number(s):	2015/187110
Publication Restriction:	Nil

JUDGMENT

HER HONOUR: This matter arises out of an engine failure that occurred during flight QF32 from Singapore to Sydney on 4 November 2010. The plaintiff was a passenger on that flight. By amended statement of claim filed 1 July 2015, the plaintiff seeks damages in the sum of $3,301,502,000,000 against the first defendant as carrier, the second defendant as the manufacturer of the aircraft and the third defendant as the manufacturer of the engine that failed.
The plaintiff is Seymour P Kern. The first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kern v Qantas Airways Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 1565
Decision Date: 27 October 2015

CaseChat Overview and Summary

The case of Kern v Qantas Airways Limited involved the plaintiff, who sought to hold the defendants, including Qantas Airways Limited, liable for damages arising from an incident that occurred during a flight. The plaintiff alleged that the defendant named in the suit was incorrect and that there were other entities involved that should have been defendants. The Federal Circuit Court was tasked with determining whether the claim was statute-barred and whether the wrong defendant had been named, as well as whether the pleadings disclosed a reasonable cause of action or were an abuse of process.

The primary legal issues addressed by the court were whether the plaintiff's claim was statute-barred under section 9B of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and Article 35 of the Montreal Convention 1999. Additionally, the court considered whether the plaintiff had named the correct defendant and whether the pleadings disclosed a reasonable cause of action or were an abuse of process. The court also needed to decide whether the plaintiff should be granted leave to amend the pleadings to correct the named defendant.

The court found that the plaintiff's claim was indeed statute-barred as it was brought outside the prescribed period under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and the Montreal Convention 1999. The court further determined that the plaintiff had named the wrong defendant, and that the pleadings did not disclose a reasonable cause of action. The court was of the opinion that the proceedings were an abuse of process, as the plaintiff's claims were not supported by any evidence and the case seemed to be an attempt to circumvent the statute of limitations. The court concluded that it would be inappropriate to grant the plaintiff leave to amend the pleadings to correct the named defendant, as the plaintiff's claims were fundamentally flawed. Consequently, the court dismissed the plaintiff's amended statement of claim and the proceedings, and ordered the plaintiff to pay the defendants' costs of the proceedings.

The court ordered that the amended statement of claim filed on 1 July 2015 be dismissed. The proceedings were also dismissed. The plaintiff was ordered to pay the defendants' costs of the proceedings, including the costs of Airbus Group Australia Pacific Limited and the costs of the notices of motion filed on 30 July 2015 and 25 September 2015, on an ordinary basis as agreed or assessed. The plaintiff's application for costs to be waived due to financial hardship was rejected.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 27 of the Transport Safety Investigation Act reads:“Reports not admissible in evidenceFinal report(1) A report under section 25 is not admissible in any civil or criminal proceedings.(2) Subsection (1) does not apply to a coronial inquiry.Draft report(3) A draft report under section 26 is not admissible in evidence in any civil or criminal proceedings.” The plaintiff’s response to this objection was that “they were the only people in the world that had access to that evidence, and therefore it was really unfair for them to make a stipulation that you couldn’t use it. Because it wasn’t fair” (T32.36-32.38). By notice of motion filed 28 August 2015, the plaintiff seeks the following orders:“1. Reclassify this Case as a Non-Montreal Convention Matter in the opinion of the Plaintiff. See the relevant affidavit for most all the reasons of why and how.2. Order Mr Greg Williams of Clayton Utz or any other deponents to GLOBALLY Provide all the REGISTERED service addresses and contact email addresses and telephone numbers along all the entities associated with all the MARKS but not limited to AIRBUS, AIRBUS GROUP, plus all other holdings with or without the above marks. This applies to Qantas and Rolls Royce or any other party ordered past, present or future.3. Leave to complete a Second Amended Claim.4. No Dismissal Requests to be made in light of Reclassification Review.5. Advise all deponents to cancel and nullify all costs, fees and the like past, present and future due to my Financial Hardship which places me at a disadvantage in light of my micro size vs all the giants that feed you as opposed to myself. By definition in a court of law we must all be equally equipped to fairly address any matter openly without hesitance by any party.6. I request that if its available to provide me with the translation services for all the languages required on a case by case basis to be used wherever required by the court or related entities.7. I request that all three or subsequent deponents equally provide me IMMEDIATELY with a realistic budget that is required by me to stay alive, well and functional so that we can all be fair with one another. My mission is to provide a generous win-win proposition to all cooperating deponents and any others that can assist me to make all of us happy. Why Not?8. Allow plaintiff to add additional points to this document most any time with leave of the court to conserve time and money.9. This is a highly controversial issue that I know could very easily attract lots of favourable media reporting.” As I have dismissed the amended statement of claim against all three defendants and I have not, in the exercise of my discretion, grant the plaintiff leave to replead, the proceedings should also be dismissed. Hence, it is not necessary to determine the plaintiff’s notices of motion filed 17 August 2015 and 28 August 2015. Those notices of motion should be dismissed. Costs are discretionary. Costs follow the event. The plaintiff has been unsuccessful so he should pay the costs.The Court orders that:(1) The amended statement of claim filed 1 July 2015 is dismissed.(2) The proceedings are dismissed.(3) The plaintiff is to pay the defendants’ costs of the proceedings, including the costs of Airbus Group Australia Pacific Limited and the costs of the notices of motion filed on 30 July 2015 and 25 September 2015 on an ordinary basis as agreed or assessed.**********

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.